This Master Service Agreement ("Agreement") is made between NetNada Pty Ltd (ACN 649 450 279) ("NetNada", "we", "us") and the customer entity signing an Order Form ("Customer", "you").
This Agreement governs Customer's access to and use of NetNada's SaaS Services and Professional Services. By signing an Order Form that references this Agreement, Customer agrees to these terms.
2.1 SaaS Services. Subject to this Agreement, NetNada grants Customer a non-exclusive, non-transferable right to access and use the SaaS Services during the Term for its internal business operations.
2.2 Professional Services. NetNada will perform any Professional Services specified in an Order Form.
(a) Deliverables. NetNada grants Customer a non-exclusive, royalty-free, worldwide, perpetual right to use, copy, and distribute any Deliverables for its internal business purposes.
(b) Acceptance. All Deliverables will be deemed accepted by Customer unless Customer provides written notice of a material non-conformance within five (5) business days of receipt.
(c) Change Orders. Any changes to the scope of Professional Services (including changes to timelines or fees) must be agreed upon by both parties in a written "Change Order".
2.3 Support. NetNada will provide commercially reasonable technical support for the SaaS Services in accordance with its then-current "Support Policy".
2.4 Service Level Agreement (SLA). Any applicable service levels for the SaaS Services will be specified in the relevant Order Form.
2.5 Customer Obligations. Customer will:
(a) be responsible for its Authorised Users' compliance with this Agreement;
(b) be responsible for the accuracy and legality of Customer Data;
(c) obtain and maintain any "Equipment" (e.g., hardware, servers, software, networking) needed to access the Services;
(d) provide NetNada with timely cooperation, access, and information as reasonably required for NetNada to perform the Professional Services. Any delays caused by Customer may result in additional fees and timeline adjustments.
2.6 Restrictions. Customer will not, and will not permit anyone to: (a) reverse engineer or attempt to discover any source code of the NetNada IP; (b) resell, sublicense, or distribute the SaaS Services; (c) use the Services to build a competitive product; or (d) use the Services for any unlawful purpose.
3.1 Fees. Customer will pay NetNada the fees specified in the applicable Order Form ("Fees").
3.2 Invoicing. (a) Unless an Order Form states otherwise, SaaS Services Fees will be invoiced annually in advance (for annual terms) or monthly in advance (for monthly terms). Professional Services Fees will be invoiced as specified in the Order Form.
(b) If Customer provides credit card details (e.g., via a Stripe link), Customer authorises NetNada to automatically charge such credit card for all Fees when due.
(c) All invoices are payable within thirty (30) days of the invoice date.
3.3 Late Payments. Overdue Fees will accrue interest at a rate of 1.5% per month, or the highest rate permitted by law, whichever is lower. If any amount is more than fifteen (15) days overdue, NetNada may suspend access to the Services until all overdue amounts are paid.
3.4 Taxes. Fees are exclusive of all taxes. Customer is responsible for paying all applicable Goods and Services Tax (GST) and any other relevant taxes, levies, or duties.
3.5 Disputes. Customer must notify NetNada in writing of any good faith dispute regarding an invoice within ten (10) business days of receipt. Customer must pay all undisputed amounts.
4.1 Agreement Term. This Agreement commences on the date of the first Order Form and continues until all Order Forms have expired or been terminated.
4.2 Order Form Term. The initial term of each Order Form ("Initial Term") will be specified in that Order Form. Order Forms will automatically renew for successive periods equal in duration to the Initial Term (each a "Renewal Term"), unless either party gives the other written notice of non-renewal at least thirty (30) days before the end of the then-current term.
4.3 Termination for Convenience. For any Order Form with a monthly term, either party may terminate that Order Form for convenience with thirty (30) days' written notice. Order Forms with an annual or multi-year term cannot be terminated for convenience.
4.4 Termination for Cause. Either party may terminate this Agreement (and all Order Forms) with thirty (30) days' written notice if the other party materially breaches this Agreement and fails to cure such breach within the 30-day notice period. A party may also terminate immediately if the other becomes insolvent or subject to bankruptcy proceedings.
4.5 Effect of Termination. Upon termination, Customer's right to access the Services ceases. For thirty (30) days following termination, NetNada will make Customer Data available for export upon request. After this period, NetNada may delete the Customer Data.
5.1 NetNada IP. NetNada owns and retains all right, title, and interest in and to the NetNada IP. No rights are granted other than as expressly set forth in this Agreement.
5.2 Customer Data. Customer owns and retains all right, title, and interest in and to the Customer Data. Customer grants NetNada a non-exclusive, worldwide, royalty-free right to use, copy, store, and process Customer Data solely to the extent necessary to provide the Services.
5.3 Deliverables. Customer owns all right, title, and interest in and to the Deliverables.
5.4 Aggregated Data. NetNada owns all rights to Aggregated Data. NetNada may use Aggregated Data for any purpose, including to improve the Services, provided it does not identify Customer or any individual.
5.5 Feedback. If Customer provides any suggestions or feedback, NetNada is free to use and incorporate such feedback into its services without any obligation or compensation.
5.6 Publicity. Customer grants NetNada the right to use Customer's name and logo on NetNada's website and in its marketing materials to identify Customer as a client.
6.1 Confidential Information. "Confidential Information" means all information disclosed by one party ("Disclosing Party") to the other ("Receiving Party") that is designated as confidential or that reasonably should be understood to be confidential. NetNada's Confidential Information includes the NetNada IP. Customer's Confidential Information includes the Customer Data.
6.2 Obligations. The Receiving Party will: (a) protect the Disclosing Party's Confidential Information with reasonable care; (b) not use any Confidential Information for any purpose outside this Agreement; and (c) not disclose Confidential Information to any third party, except as permitted.
6.3 Exceptions. Confidential Information does not include information that: (a) is or becomes publicly known through no breach of this Agreement; (b) was known to the Receiving Party prior to disclosure; (c) is received from a third party without breach of any obligation of confidentiality; or (d) was independently developed by the Receiving Party.
6.4 Privacy. NetNada will collect, use, store, and disclose any Personal Information within the Customer Data in accordance with the Privacy Act 1988 (Cth) and the Australian Privacy Principles.
6.5 Data Breach. NetNada will notify Customer without undue delay upon becoming aware of any actual or suspected data breach that is likely to result in serious harm to individuals whose Personal Information is involved, in accordance with the Notifiable Data Breaches scheme.
6.6 Data Processing and Location. Customer acknowledges that NetNada uses secure, global third-party cloud service providers to host and operate the Services. As such, Customer Data (including Personal Information) may be processed and stored in locations outside of Australia. NetNada will take reasonable steps to ensure that any cross-border transfer of Personal Information complies with the requirements of the Australian Privacy Principles.
6.7 Security. NetNada will maintain appropriate administrative, physical, and technical safeguards to protect the security and integrity of Customer Data, as further described in NetNada's then-current "Security Statement," which will be made available to Customer.
7.1 Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
7.2 NetNada Warranties. NetNada warrants that:
(a) the SaaS Services will perform materially in accordance with any applicable documentation; and
(b) the Professional Services will be performed in a professional and workmanlike manner.
7.3 Customer Warranties. Customer warrants that:
(a) it owns or has the necessary rights to provide the Customer Data to NetNada; and
(b) its use of the Services will comply with all applicable laws.
7.4 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 7.2, THE SERVICES ARE PROVIDED "AS IS" AND NETNADA DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, TO THE MAXIMUM EXTENT PERMITTED BY LAW. NETNADA DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
7.5 Non-Advice Disclaimer. Customer acknowledges that the Services are for informational purposes only and do not constitute legal, financial, accounting, or compliance advice. Customer is solely responsible for its compliance with all applicable laws and reporting obligations.
7.6 Australian Consumer Law. Nothing in this Agreement operates to exclude, restrict or modify any non-excludable condition, warranty, guarantee, right or remedy, including under the Australian Consumer Law. NetNada's liability for any breach of such a non-excludable term is limited, at NetNada's option, to the re-supply of the relevant Services or payment of the cost of re-supply.
8.1 By NetNada. NetNada will indemnify and defend Customer from and against any third-party claims ("Claims") alleging that the SaaS Services infringe any third-party's Intellectual Property Rights. NetNada will have no liability under this section to the extent a Claim arises from: (i) Customer's breach of this Agreement; (ii) use of the SaaS Services in combination with any third-party software, data, or equipment not provided by NetNada; (iii) any modification to the Services not made by NetNada; or (iv) any data or reports that have been subject to a third-party audit. This section states NetNada's entire liability for IP infringement.
8.2 By Customer. Customer will indemnify and defend NetNada from and against any Claims arising from: (a) the Customer Data; or (b) Customer's breach of Section 2.6 (Restrictions).
8.3 Indemnity Procedure. The indemnifying party's obligations are subject to the indemnified party: (a) promptly notifying the indemnifying party in writing of the Claim; (b) giving the indemnifying party sole control of the defense and settlement; and (c) providing reasonable cooperation.
9.1 Exclusion of Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT.
9.2 Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY'S TOTAL AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO NETNADA IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
9.3 Exceptions. The limitations in Section 9.2 (Liability Cap) will not apply to:
(a) A party's obligations under Section 8 (Indemnification);
(b) A party's breach of Section 6 (Confidentiality & Privacy);
(c) Customer's breach of its payment obligations or Section 2.6 (Restrictions); or
(d) Liability for fraud, gross negligence, or wilful misconduct.
During the Term, NetNada will maintain at its own expense:
(a) Public Liability insurance with a limit of not less than AUD $10,000,000 per occurrence; and
(b) Professional Indemnity insurance with a limit of not less than AUD $10,000,000 in the aggregate.
11.1 Governing Law. This Agreement is governed by the laws of New South Wales, Australia. The parties submit to the exclusive jurisdiction of the courts of New South Wales.
11.2 Assignment. Neither party may assign this Agreement without the prior written consent of the other, except that either party may assign it in connection with a merger, acquisition, or sale of all or substantially all of its assets.
11.3 Notices. All notices under this Agreement must be in writing and will be deemed given when received, if personally delivered, or when receipt is electronically confirmed, if sent by email.
11.4 Force Majeure. Neither party will be liable for any delay or failure to perform (other than payment obligations) due to an event beyond its reasonable control.
11.5 Modern Slavery. Each party will comply with all applicable anti-slavery and human trafficking laws, including the Modern Slavery Act 2018 (Cth).
11.6 Entire Agreement. This Agreement, including all Order Forms, constitutes the entire agreement between the parties. If there is a conflict between this Agreement and an Order Form, the Order Form will prevail.
11.7 Severability. If any provision of this Agreement is held to be invalid, the remaining provisions will remain in full force and effect.
